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Refugee appeal tribunal must independently confirm facts, judge rules

A new tribunal created to hear refugee appeals must conduct its own independent assessment of facts when reviewing decisions by lower tribunals, says the Federal Court of Canada.

Bujar Huruglica and his family sought asylum in Canada in 2013, claiming they were threatened by Islamic extremists because Huruglica had worked as a contractor for the U.S. military in Iraq and Afghanistan. (Nicholas Keung / Toronto Star file photo)

A new tribunal created to hear refugee appeals must conduct its own independent assessment of facts when reviewing decisions by lower tribunals, says the Federal Court of Canada.

Friday’s court decision is a setback for the Refugee Appeal Division (RAD), which Ottawa implemented in 2012 as part of the Conservative government’s compromise while it rolled out controversial reforms of the asylum process that drastically shortened processing timelines and limited appeals.

Although the government has vowed to grant failed refugees “access to a full fact-based appeal” through the RAD, critics complain adjudicators on the appeal tribunal often just review the “reasonableness” of a refugee decision and defer to the judgment of their colleagues in the lower tribunal when it comes to fact determination.

“If the RAD simply reviews . . . decisions for reasonableness, then its appellate role is curtailed. It would merely duplicate what occurs on a judicial review,” Justice Michael Phelan wrote in a decision, released Friday, on a case involving a failed refugee family from Kosovo.

“If the RAD only performed a duplicative role to that of the Federal Court, it would be inconsistent with the creation of the RAD.”

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Phelan’s precedent-setting decision will compel the refugee appeal tribunal to change its approach in how its adjudicators do their job, and potentially reopen other asylum appeals the RAD has dismissed since its inception in December 2012.

“This comes out very clear that the RAD has more expertise and experience than the lower tribunal, and it must conduct its own independent assessment of facts,” said Cheryl Robinson, lawyer for Bujar Huruglica and his family, who challenged RAD’s rejection of their case and its rationale.

“What Justice Phelan is saying is if RAD members come to a different conclusion, then they must substitute with their own decision. This represents a shift in the way of thinking and approach from assessing reasonableness to independent fact-finding.”

Lawyers for Immigration Minister Chris Alexander had argued that rehearing a refugee claim from scratch is inefficient and would reduce the lower adjudicator’s job to that of a “preliminary inquiry.”

However, Phelan said RAD members have the ultimate responsibility of determining if a claimant is in need of protection.

“In conducting its assessment, it can recognize and respect the conclusion of the (lower tribunal),” he said, “but it is not restricted, as an appellate court is, to intervening on facts only where there is a ‘palpable and overriding error.’ The RAD’s conclusion as to the approach it should take in conducting an appeal is, with respect, in error.”

Lawyer Audrey Macklin, a co-counsel for the case’s two interveners, the Canadian Association of Refugee Lawyers and Canadian Council for Refugees, praised Phelan’s decision.

“The case is very important not just about the protection of the litigant, but about how the RAD is to do its job in all cases before it in order to have a meaningful appeal process,” said Macklin, adding that closer scrutiny by the RAD can hopefully improve the quality of decision-making by the lower-level judges.

The Huruglicas sought asylum in Canada in 2013, claiming they were threatened by Islamic extremists because Huruglica had worked as a contractor for the American military in Iraq and Afghanistan.

Although their claim was found credible, it was rejected because the adjudicator decided that authorities in Kosovo were capable of protecting the family. An appeal ensued at the RAD.

In denying the appeal, the RAD said it must show “deference” to the adjudicator at the lower tribunal on findings of fact and credibility, because the adjudicator hears evidence first-hand, while the appeal tribunal conducts paper reviews only except in unusual circumstances.

The Immigration and Refugee Board, which oversees the RAD operation, declined to comment on Friday’s court decision. Alexander has 30 days to file an appeal.

According to the board, the RAD had received 1,726 refugee appeals as of March 31, including 1,676 filed by failed claimants and 50 by the immigration minister.

Among the 1,106 cases finalized in the same period, only 17 per cent — or 191 appeals — were successful.

The court has ordered a new appeal hearing for the Huruglica family with a different adjudicator.

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